实名制下有偿代购火车票行为的法律性质分析——以10元“倒卖”火车票案为视角

倒卖车票、船票罪中倒卖行为的实质是具有投机性。火车票实名制度的出台有效限制了传统倒卖行为中对火车票的囤积，实名制下有偿代购火车票的行为不具有投机性，其本质应属于一般违法经营活动。从罪刑法定原则出发。其行为表现与侵害的法益不同于传统倒卖行为，不应认定为倒卖车票、船票罪；在利益衡量的角度，有偿代购火车票的行为也不宜认定为犯罪行为。为秩序与便利的平衡，应当对有偿代购行为进行合理规制。

The Analysis of the Legal Essence of Train Tickets-Purchasing Agency under the Real-Name System——From the Perspective of the 10 yuan Train Ticket Case

The essence of reselling the train tickets is that the behavior is speculative. The promulgation of the real-name system of train tickets selling has effectively limited the accumulation of train tickets. The paid tickets-purchasing agency under the real-name system is not speculative, and that should have been regarded as a general illegal business activity. From the Nullum crimen sine lege, Nu｜la ponea sine lege, the behavior and the legal benefit harmed are different from the traditional ones. As a result, it should not be regarded as crime. Also, from the view of effectiveness, it cannot be considered as crime. In order to have the balance between law and effectiveness, the paid purchasing agency should be duly regulated.